Preston v. Kaw Pipe Line Co., 2422.
| Decision Date | 22 June 1942 |
| Docket Number | No. 2422.,2422. |
| Citation | 128 F.2d 162 |
| Parties | PRESTON v. KAW PIPE LINE CO. et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
A. L. Orr, of Medicine Lodge, Kan., and O. B. Martin, of Blackwell, Okl. (W. W. Pryor, of Wewoka, Okl., on the brief), for appellant.
Jos. G. Carey, of Wichita, Kan., and J. P. Greve, of Tulsa, Okl. (B. W. Griffith, of Tulsa, Okl., Earl A. Brown, of Ardmore, Okl., and Donald Campbell, Alvin F. Molony, H. G. Ross, James B. Diggs, Ralph J. May, George W. Cunningham, J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, and C. A. Kothe, all of Tulsa, Okl., and Wm. F. Pielsticker, of Wichita, Kan., on the brief), for appellees.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
Ben Preston filed this action against a large number of individual and corporate defendants in the District Court of Russell County, Kansas. The case was removed to the District Court of the United States for the District of Kansas upon petition of some of the non-resident corporate defendants. A motion to remand was overruled. No attempt seems to have been made to serve any of the individual defendants nor a number of the corporate defendants with summons. A large number of the individual defendants and all of the corporate defendants on whom service of summons was made filed motions for summary judgment. The motions were all sustained and judgment was entered on the merits in favor of the defendants and against plaintiff. Plaintiff has appealed.
Appellant urges that there was no separable controversy present justifying removal of the case to the federal court by the non-resident defendants and that therefore the court erred in refusing to remand.
The applicable principle of law by which this question must be determined has been well charted and is free from doubt. In Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514, the Supreme Court defined a separable controversy as being one between plaintiff and a defendant which could be fully adjudicated between them in the action and to the adjudication of which no other party was necessary or indispensable. See, also, Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528.
Whether a removable separable controversy is present must in each instance be determined from the plaintiff's pleading at the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334. Seven separate petitions for removal were filed by non-resident corporate defendants. It is not necessary to examine plaintiff's petition in detail to ascertain whether it presents a separable controversy as to each of these defendants, for if it presents such a controversy as to any of them, the cause is removable and removal transfers the entire controversy to the federal court. City of Gainesville v. Brown-Crummer Co., 277 U.S. 54, 48 S.Ct. 454, 72 L.Ed. 781.
In substance, the petition alleged that in 1924 the defendant landowners executed individual oil and gas leases to a large block of acreage to the Focks Drilling and Manufacturing Company; that the leases were escrowed in the Bunker Hill State Bank; that under the escrow agreement they were to remain in the bank until a test well was spudded in, when they were to be delivered; that the drilling contract was assigned to appellant; that a well was spudded in while the escrow agreement was in full force; that the bank refused to deliver the leases to plaintiff, but wrongfully returned them to the landowners, who thereupon executed new leases to other parties. The petition alleged that new leases were executed, among others, to the defendants the Texas Company, the Continental Oil Company, the Skelly Oil Company, the Stanolind Oil and Gas Company, the Gulf Oil Corporation of Pennsylvania, Cities Service Oil Company, Cities Service Gas Company, the Magnolia Petroleum Company, and the Standard Oil and Gas Company.
At least three controversies are presented by the petition, as indicated by the prayer. These are: 1, That the defendant landowners be compelled to specifically perform the escrow agreement and deliver the old leases, or, in the alternative, that they be compelled to execute new leases and escrow them under the terms of the escrow...
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Johnson v. Marsh
...223 F. 858; Morris v. Louisville & N. R. Co., C. C., 175 F. 491; Greif v. Sears, Roebuck & Co., D.C., 48 F.Supp. 242; Preston v. Kaw Pipe Line Co., 10 Cir., 128 F.2d 162. This is not the time, nor, unless and until jurisdiction is retained, is this the place for the consideration of infirmi......
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State ex rel. Morrison v. Price, 96,481.
...parties and their claims, is transferred to the Federal court."); Lewis, 266 Va. at 517-18, 587 S.E.2d 697; cf. Preston v. Kaw Pipe Line Co., 128 F.2d 162, 163-64 (10th Cir.1942). The majority justifies this result with its determination that David Martin Price engaged in the unauthorized p......
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Oldland v. Gray, 3907.
...adjudicated between parties of diverse citizenship, and as to which no other party is necessary or indispensable. Preston v. Kaw Pipe Line Co., 10 Cir., 128 F.2d 162; State of Oklahoma ex rel. Williams v. Neustadt, 10 Cir., 149 F.2d All of the defendants joined in a single petition for remo......
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